RINKU Vs. GULABCHAND

JUDGEMENT

(1.) This writ petition under Articles 226& 277 of the Constitution of India has been preferred claiming the following reliefs.: "Hence it is, therefore respectfully prayed that the writ petition filed by the petitioner be allowed by passing an appropriate writ, order or direction:- a). That the order passed by the learned trial Court dtd. 28/05/2022 Annex. 4 may kindly be quashed and set aside. b). That the application filed by the petitioner non-applicant under Order 7 Rule 10 read with Sec 151 CPC and Sec 9 of the Act of 1890 Annex. 2, be allowed as prayed therein. c). Any other order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner. d). That the petitioner may be awarded the cost of the litigation."

(2.) As per the pleaded facts, the respondent (father) filed an application (registered as case no.59/2016) under the provisions of the Guardian and Wards Act, 1890 (hereinafter referred to as 'Act of 1890') before the learned Additional District Judge, Bali, District Pali for claim of guardianship of his daughter and son, namely, Harshita and Yakshat respectively, along with an application for interim custody of children, against the petitioner. Thereafter, an application was filed under Order 7 Rule 10 read with Sec. 151 CPC along with Sec. 9 of the Act of 1890 by the petitioner (mother) wherein it was stated that since the children were living in Mumbai alongwith petitioner's mother, thus the learned Court did not have jurisdiction over the matter. 2.1. Subsequently, a reply was submitted by the respondent (father) and learned Court below vide the impugned order dtd. 28/5/2022, the application filed by the petitioner (mother) was rejected. Thus, aggrieved by the impugned order dtd. 28/5/2022 the present petition has been preferred claiming the afore-quoted reliefs.

(3.) Learned counsel for the petitioner (mother) submitted that the children had been living in Mumbai alongwith her mother since 2013, while the application was filed by the respondent (father) in the year 2016, thus ordinarily, the residence of the minor children was with the mother since many years; hence, as per the provisions of Sec. 9 of the Act of 1890, the application was to be filed by the respondent (father) before the competent Court at in Mumbai, but the same was filed before the learned Court below, which did not have jurisdiction to hear the above- said application, and thus, the same should have been returned to be filed before Court of competent jurisdiction.